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index on censorship, autumn 2008

Twenty years ago, at the height of the Rushdie affair, a televised debate took place in Manchester Town Hall. On the platform was Kalim Siddiqui, the founder of the London-based, Iranian-backed Muslim Institute. The fatwa, he claimed, was just, and Rushdie had to die. How many of you, he asked the audience, support the death sentence? The majority raised their hands. How many, he continued, would be willing to carry it out? Almost the same number kept their hands up.

It was an electrifying moment, caught on camera and replayed on the evening news. It became the spark for a debate about incitement to murder.

Many Rushdie supporters demanded that the DPP bring a case of incitement to murder against Siddiqui. Frances D'Souza, chair of the International Committee for the Defence of Salman Rushdie, opposed any such move. 'Siddiqui's words, although shocking and distasteful', she pointed out, 'did not constitute incitement since neither he nor his followers were in any position to carry out the fatwa, nor were they every likely to be in such a position. Using the famous American Court ruling on incitement, there was no "clear and present danger" of Siddiqui's words becoming action.'

Eighteen years later, the Metropolitan Police and the Crown Prosecution Service took a very different view when confronted with a group of Muslim demonstrators protesting against the Danish cartoons. Four were charged with soliciting murder and incitement to racial hatred for shouting 'Bomb, bomb Denmark' and for calling for UK soldiers to be brought back from Iraq in body bags. The demonstrators were even less in a position to carry out their threats or to incite others to do so than Kalim Siddiqui had been. There was no clear and present danger. Nevertheless they were imprisoned for between four and six years - in reality not for incitement or solicitation but for thinking unacceptable thoughts.

The contrast between the treatment of the anti-Rushdie protestors and the anti-cartoon demonstrators is the story not just of how far attitudes to free speech have changed, but also of how the ideas of extremism, incitement and hate speech have transformed. Over the past two decades the notion of 'hatred' has expanded, the meaning of 'incitement' has become elastic, and the concept of extremism has been redefined. The law is now used to criminalise not just speech that directly leads to harm, but speech that might indirectly cause harm, or which is regarded as morally unacceptable.

In part, the war on terror has helped drive such curtailment of civil liberties. Consider, for instance, the conviction, last year, of Samina Malik, the so-called 'lyrical terrorist', under the Terrorism Act 2000 for possessing materials 'likely to be useful to a person committing or preparing an act of terrorism'. She was a young woman with some disturbing thoughts in her head. But apart from writing execrable doggerel about her desire to 'chop chop head of kuffar swine', her only action was to download inflammatory material from freely available websites – some of which I have downloaded myself. Any terrorist who was unable to download such material for themselves is hardly likely to have the wit to carry out a terrorist outrage. The real crime for which Malik was convicted were the thoughts and desires in her unhinged head. The case should never have come to court, let alone Malik be convicted.

The problem, however, lies much deeper than just the war on terror. The expansion of notions of incitement and hatred began long before 9/11 and some of the fiercest critics of the war on terror have been among the most vocal in arguing for restrictions on free speech, for instance over incitement to racial and religious hatred. The anti-terror laws are exploiting a culture of censorship that already exists.

One of the most significant shifts in recent years has been the mutation of the notion of 'extremism' from being a description of a political claim to being a quasi legal term. From the BNP to Hizb ut-Tahrir to Buju Banton's homophobic lyrics, to label speech as extremist is to label it as a potential candidate for legal sanction. This shift has happened for two reasons. First, extremism has become a moral rather than a political issue. And second there is now a widespread acceptance that it is the job of the state, and of criminal law, to define moral boundaries.

To label an argument or a thought as 'extremist' is today more than simply to locate it on the political map. It is also to make a moral judgement upon it. Something is extremist if it is beyond the boundaries of accepted reasonable debate. And once beyond the boundaries of reasonable debate, few would argue against it becoming a candidate for criminal sanction.

Take hate speech. Why do we talk so much about hate speech these days? Largely because hate speech has become a way of rebranding extremist ideas to stress their moral content; in other words, of rebranding obnoxious political claims as immoral arguments. Where once we might have challenged such sentiments politically, today we are more likely to seek criminal sanctions to outlaw them.

The problem is that one person's moral necessity may be another's ethical poison. Two years ago, Iqbal Sacranie, former general secretary of the Muslim Council of Britain, denounced homosexuality on Radio 4's Today programme. His comments led to a police investigation of 'behaviour likely to cause alarm, harassment or distress contrary to the Public Order Act'. In response, 22 Muslim leaders wrote to the Times demanding the right to be able to 'freely express their views in an atmosphere free of intimidation or bullying'. Those same leaders denied such a right to newspapers publishing cartoons about Mohammed. Gay rights groups want Muslims (and black raga artists) to be prosecuted for homophobia but want the right to criticise Muslims as they see fit. BNP leader Nick Griffin wants to be free to promote racist hatred, but wants to lock up Islamic clerics who do the same. And so on. The only winner in all this is the state, which increasingly gets to police what any of us can say to each other.

As a result of all this, the distinctions between giving offence, fomenting hatred and inciting violence have become blurred. These distinctions are critical because the giving of offence is not only acceptable, but also necessary in a healthy democratic society. The fomenting of hatred may well create political and social problems; but these are not problems that can be solved by legislation to restrict free speech. Incitement to violence should be an offence, but only if incitement is tightly defined, much more so than it is at present.

Both the blurring of categories and the expansion of the law to criminalise thought is clear in the two pieces of recent legislation that have done most to restrict free speech - the clampdown on the glorification of terrorism, on the one hand, and incitement to religious hatred, on the other. Direct, intentional incitement to terrorist acts - whether or not they occur as a result - has been a criminal offence for some time. What is new is the trend towards criminalizing indirect incitement - glorification of, or apology for, terrorism. The Terrorism Act 2006 is deliberately vague about what constitutes either glorification or terrorism and does not require demonstration of intention on the part of those charged with an offence.

The creation of such offences, and the convictions not just of the anti-cartoon protestors, but of Islamic firebrands such as Abu Hamza and Abu Izzadeen, has led to accusations of Islamophobia, and to the claim that the law is specifically targeting Muslims. But hand-in-hand with the criminalising of Islamic dissent has come the criminalising of criticism of Islam. In parallel with the banning of glorification of terrorism has come the banning of incitement to religious hatred, a law aimed primarily at appeasing Muslim sentiment. Far from targeting Muslims, the law is taking it upon itself to determine what anyone, Muslim or non-Muslim, can say about each other
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Many of those who opposed the law against the glorification of terrorism supported the criminalising of religious hatred as protection for a beleaguered minority. Many of those who opposed the religious hatred law as infringing legitimate speech support the outlawing of the glorification of terrorism as a necessary weapon in the war on terror.

The trouble is, we cannot have it both ways. If we invite the state to define the boundaries of acceptable speech, we cannot complain if it is not just speech to which we object that gets curtailed. The state should not define either what Muslims can say or what can be said about Muslims - or about anybody else for that matter.

Samina Malik should have the right to write doggerel in praise of jihad. Protestors against the Danish cartoons should have the right to shout 'Bomb Denmark'. And Danish cartoonists should have the right to caricature Mohammed as they see fit. It is politically naïve to imagine that criminal sanctions are the best weapons against bad thoughts or unhinged minds. It is politically dangerous to divest responsibility to the state to determine the moral acceptability of speech - whether in the cause of anti-racism or the course of the war on terror.